Prayer was offered by the Honorable Steve Harrison, a senator
from the eighth district.
Pending the reading of the Journal of Thursday, January 27,
2005,
On motion of Senator Dempsey, the Journal was approved and the
further reading thereof dispensed with.
On motion of Senator Love, the special order of business set
for this position on the calendar (consideration of executive
nominations) was postponed and made a special order of business
following an anticipated recess.
The Senate proceeded to the third order of business.A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, ofEng. Senate Bill No. 1001, Authorizing excess amounts received
by inaugural committee be expended for Governor's Mansion.A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as toEng. Com. Sub. for Senate Bill No. 1003, Relating generally to
ethical standards of governmental officials and employees.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:On page five, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §6B-1-2 and §6B-1-3 of the code of West Virginia, 1931,
as amended, be amended and reenacted; that said code be amended by
adding thereto a new section, designated §6B-1-6; that §6B-2-1,
§6B-2-2, §6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of said
code be amended and reenacted; that said code be amended by adding
thereto three new sections, designated §6B-2-2a, §6B-2-5b and
6B-2-12; that §6B-3-1, §6B-3-2, §6B-3-3a, §6B-3-4, §6B-3-7 and
§6B-3-9 of said code be amended and reenacted; and that said code
be amended by adding thereto three new sections, designated
§6B-3-3b, §6B-3-3c and §6B-3-7a, all to read as follows:

§6B-1-2. Legislative findings, purpose, declaration and intent.
(a) The Legislature hereby finds that the holding of a public
office or public employment is a public trust. Independence and
impartiality of public officials and public employees are essential
for the maintenance of the confidence of our citizens in the
operation of a democratic government. The decisions and actions of
public officials and public employees must be made free from undue
influence, favoritism or threat, at every level of government.
Public officials and public employees who exercise the powers of
their office or employment for personal gain beyond the lawful
emoluments of their position or who seek to benefit narrow economic
or political interests at the expense of the public at large
undermine public confidence in the integrity of a democratic
government.
(b) It is the purpose of this chapter to maintain confidence
in the integrity and impartiality of the governmental process in
the state of West Virginia and its political subdivisions and to
aid public officials and public employees in the exercise of their
official duties and employment; to define and establish minimum
ethical standards for elected and appointed public officials and
public employees; to eliminate actual conflicts of interest; to
provide a means to define ethical standards; to provide a means of
investigating and resolving ethical violations; and to provide
administrative and criminal penalties for specific ethical
violations herein found to be unlawful.
(c) The Legislature finds that the state government and its many public bodies and local governments have many part-time public
officials and public employees serving in elected and appointed
capacities; and that certain conflicts of interest are inherent in
part-time service and do not, in every instance, disqualify a
public official or public employee from the responsibility of
voting or deciding a matter; however, when such conflict becomes
personal to a particular public official or public employee, such
person should seek to be excused from voting, recused from
deciding, or otherwise relieved from the obligation of acting as a
public representative charged with deciding or acting on a matter.
(d) It is declared that high moral and ethical standards among
public officials and public employees are essential to the conduct
of free government; that the Legislature believes that a code of
ethics for the guidance of public officials and public employees
will help them avoid conflicts between their personal interests and
their public responsibilities, will improve standards of public
service and will promote and strengthen the faith and confidence of
the people of this state in their public officials and public
employees.(e) The Legislature finds that the ethics commission should be
an independent and fully funded agency able to address and complete
its mission without interference or concern that it is unable to
meets its budgetary needs. To that end the Legislature finds that
all fees and any other funds paid by persons subject to the West
Virginia Governmental Ethics Act, other than fines and penalties,
arising out of matters covered herein shall represent a dedicated source of funding for the commission and shall be deposited in a
special account to be appropriated by the Legislature for the
operation of the commission.(e)(f) It is the intent of the Legislature that in its
operations the West Virginia ethics commission created under this
chapter shall protect to the fullest extent possible the rights of
individuals affected.§6B-1-3. Definitions.
As used in this chapter, unless the context in which used
clearly requires otherwise:
(a) "Board of Review" means the Public Servant Conduct Review
Board created by article two-a of this article.(b) "Compensation" means money, thing of value or financial
benefit. The term "compensation" does not include reimbursement
for actual reasonable and necessary expenses incurred in the
performance of one's official duties.(b)(c) "Employee" means any person in the service of another
under any contract of hire, whether express or implied, oral or
written, where the employer or an agent of the employer or a public
official has the right or power to control and direct such person
in the material details of how work is to be performed and who is
not responsible for the making of policy nor for recommending
official action.(c)(d) "Ethics commission", "commission on ethics" or
"commission" means the West Virginia ethics commission.(d)(e) "Immediate family", with respect to an individual, means a spouse residing in the individual's household and any
dependent child or children, and dependent parent or parents.(e)(f) "Ministerial functions" means actions or functions
performed by an individual under a given state of facts in a
prescribed manner in accordance with a mandate of legal authority,
without regard to, or without the exercise of, such individual's
own judgment as to the propriety of the action being taken.(f)(g) "Person" means an individual, corporation, business
entity, labor union, association, firm, partnership, limited
partnership, committee, club or other organization or group of
persons, irrespective of the denomination given such organization
or group.(g)(h) "Political contribution" means and has the same
definition as is given that term under the provisions of article
eight, chapter three of this code.(h)(i) "Public employee" means any full-time or part-time
employee of any governmental body or any political subdivision
thereof, including county school boards.(i)(j) "Public official" means any person who is elected or
appointed and who is responsible for the making of policy or takes
official action which is either ministerial or nonministerial, or
both, with respect to: (i) Contracting for, or procurement of,
goods or services; (ii) administering or monitoring grants or
subsidies; (iii) planning or zoning; (iv) inspecting, licensing,
regulating or auditing any person; or (v) any other activity where
the official action has an economic impact of greater than a de minimis nature on the interest or interests of any person.
Notwithstanding the provisions of sections two and four, article
two, chapter five-b of this code, "public official" also means the
director of the West Virginia development office and the director
of performance based incentives and representatives of the West
Virginia development office.(j)(k) "Respondent" means a person who is the subject of an
investigation by the commission or against whom a complaint has
been filed with the commission.(k)(l) "Thing of value", "other thing of value", or "anything
of value" means and includes: (i) Money, bank bills or notes,
United States treasury notes, and other bills, bonds or notes
issued by lawful authority and intended to pass and circulate as
money; (ii) goods and chattels; (iii) promissory notes, bills of
exchange, orders, drafts, warrants, checks, bonds given for the
payment of money or the forbearance of money due or owing; (iv)
receipts given for the payment of money or other property; (v) any
right or chose in action; (vi) chattels real or personal or things
which savor of realty and are, at the time taken, a part of a
freehold, whether they are of the substance or produce thereof or
affixed thereto, although there may be no interval between the
severing and the taking away thereof; (vii) any interest in realty,
including, but not limited to, fee simple estates, life estates,
estates for a term or period of time, joint tenancies, co-
tenancies, tenancies in common, partial interests, present or
future interests, contingent or vested interests, beneficial interests, leasehold interests, or any other interest or interests
in realty of whatsoever nature; (viii) any promise of employment,
present or future; (ix) donation or gift; (x) rendering of services
or the payment thereof; (xi) any advance or pledge; (xii) a promise
of present or future interest in any business or contract or other
agreement; or (xiii) every other thing or item, whether tangible or
intangible, having economic worth. "Thing of value", "other thing
of value" or "anything of value" shall not include anything which
is de minimis in nature nor a lawful political contribution
reported as required by law.§6B-1-6. Special revenue account.All moneys collected shall be deposited in a special account
in the state treasury to be known as the West Virginia Governmental
Ethics Commission Fund." Expenditures from the fund shall be for
the purposes set forth in this chapter and are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a of this code: Provided, That for the fiscal year ending the
thirtieth day of June, two thousand five, expenditures are
authorized from collections rather than pursuant to an
appropriation by the Legislature.

ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC
OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES; CODE OF CONDUCT FOR ADMINISTRATIVE LAW
JUDGES.

§6B-2-1. West Virginia ethics commission created; members;
appointment, term of office and oath; compensation
and reimbursement for expenses; meetings and quorum.

(a) There is hereby created the West Virginia ethics
commission, consisting of twelve members, no more than seven of
whom shall be members of the same political party. The members of
the commission shall be appointed by the governor with the advice
and consent of the Senate. Within thirty days of the effective
date of this section, the governor shall make the initial
appointments to the commission. No person may be appointed to the
commission or continue to serve as a member of the commission who
holds elected or appointed office under the government of the
United States, the state of West Virginia or any of its political
subdivisions, or who is a candidate for any of such offices, or who
is a registered lobbyist, or who is otherwise subject to the
provisions of this chapter other than by reason of his or her
appointment to or service on the commission. A member may
contribute to a political campaign, but no member shall hold any
political party office or participate in a campaign relating to a
referendum or other ballot issue.
(b) At least two members of the commission shall have served
as a member of the West Virginia Legislature; at least two members
of the commission shall have been employed in a full-time elected
or appointed office in state government; at least one member shall have served as an elected official in a county or municipal
government or on a county school board; at least one member shall
have been employed full time as a county or municipal officer or
employee; and at least two members shall have served part time as
a member or director of a state, county or municipal board,
commission or public service district and at least four members
shall be selected from the public at large. No more than four
members of the commission shall reside in the same congressional
district.
(c) Of the initial appointments made to the commission, two
shall be for a term ending one year after the effective date of
this section, two for a term ending two years after the effective
date of this section, two for a term ending three years after the
effective date of this section, three for a term ending four years
after the effective date of this section and three shall be for
terms ending five years after the effective date of this section.
Thereafter, terms of office shall be for five years, each term
ending on the same day of the same month of the year as did the
term which it succeeds. Each member shall hold office from the
date of his or her appointment until the end of the term for which
he or she was appointed or until his or her successor qualifies for
office. When a vacancy occurs as a result of death, resignation or
removal in the membership of this commission, it shall be filled by
appointment within thirty days of the vacancy for the unexpired
portion of the term in the same manner as original appointments.
No member shall serve more than two consecutive full or partial terms and no person may be reappointed to the commission until at
least two years have elapsed after the completion of a second
successive term.
(d) Each member of the commission shall take and subscribe to
the oath or affirmation required pursuant to section 5, article IV
of the constitution of West Virginia. A member may be removed by
the governor for substantial neglect of duty, gross misconduct in
office or violation of this chapter, after written notice and
opportunity for reply.
(e) The commission shall meet within thirty days of the
initial appointments to the commission at a time and place to be
determined by the governor, who shall designate a member to preside
at that meeting until a chairman is elected. At its first meeting,
the commission shall elect a chairman and such other officers as
are necessary. The commission shall within ninety days after its
first meeting adopt rules for its procedures.
(f) Seven members of the commission shall constitute a quorum,
except that when the commission is sitting as a hearing board
pursuant to section four of this article, then five members shall
constitute a quorum. Except as may be otherwise provided in this
article, a majority of the total membership shall be necessary to
act at all times.
(g) Members of the commission shall receive the same
compensation and expense reimbursement as is paid to members of the
Legislature for their interim duties as recommended by the citizens
legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties:
Provided, Thatto be eligible for compensation and expense
reimbursement, the member must be in personal attendance at the
meeting in which the duties are performed.
(h) The commission shall appoint an executive director to
assist the commission in carrying out its functions in accordance
with commission rules and regulations and with applicable law.
Said executive director shall be paid such salary as may be fixed
by the commission or as otherwise provided by law. The commission
shall appoint and discharge counsel and employees and shall fix the
compensation of employees and prescribe their duties. Counsel to
the commission shall advise the commission on all legal matters and
on the instruction of the commission may commence such civil
actions as may be appropriate: Provided, That no counsel shall
both advise the commission and act in a representative capacity in
any proceeding.
(i) The commission may delegate authority to the chairman or
executive director to act in the name of the commission between
meetings of the commission, except that the commission shall not
delegate the power to hold hearings and determine violations to the
chairman or executive director.(j) The chairman shall have the authority to designate
subcommittees of three persons, no more than two of whom may be
members of the same political party. Said subcommittees shall be
investigative panels which shall have the powers and duties set
forth hereinafter in this article.(k)(j) The principal office of the commission shall be in the
seat of government but it or its designated subcommittees may meet
and exercise its power at any other place in the state. Meetings
of the commission shall be public unless such meetings or hearings
are required to be private in conformity with the provisions of
this chapter relating to confidentiality, except that the
commission shall exclude the public from attendance at discussions
of commission personnel, planned or ongoing litigation and planned
or ongoing investigations.(l)(l) Meetings of the commission shall be upon the call of
the chairman and shall be conducted by the personal attendance of
the commission members and no meeting shallmay be conducted by
telephonic or other electronic conferencing: nor shall any member
be allowed to vote by proxy Provided, That telephone conferencing
or other electronic conferencing and voting may not be held when
the commission is acting as a hearing board under section four of
this article.for the purpose of approving or rejecting any
proposed advisory opinions prepared by the commission, or for
voting on issues involving the administrative functions of the
commission Meetings held by telephone or other electronic
conferencing shall require notice to members in the same manner as
meetings to be personally attended, and shall be electronically
recorded. and the recordings shall be made a permanent part of the
commission records. Members shall not be compensated for meetings
other than those personally attended.All meeting records shall be
kept for at least seven years.

§6B-2-2. Same -- General powers and duties.

(a) The commission shall promulgate rules and regulations to
carry out the purposes of this article within six months of the
effective date of this section. Such rules and regulations shall
be legislative rules subject to legislative rule-making review and
subject to the provisions of the administrative procedures act.
(b) The commission may initiate or receive complaints and make
investigations, as provided in section four of this article, and
upon complaint by an individual of an alleged violation of this
article by a public official or public employee, refer the
complaint to the Review Board as provided in section two-a of this
article. Any person charged with a violation of this chapter is
entitled to the administrative hearing process contained in section
four of this article.(1) The commission may commence an investigation, pursuant to
section four of this article, on the filing of a complaint duly
verified by oath or affirmation, by any person.
(2) The commission may order the executive director to prepare
a complaint, upon a majority affirmative vote of its members, if it
receives or discovers credible information which, if true, would
merit an inquiry of whether a violation of this article has
occurred.(3) (A) No complaint may be accepted or initiated by the
commission concerning a candidate for elective office during the
one hundred day period before a primary or general election in
which he or she is a candidate. During this one hundred day period, any person may petition a court of general jurisdiction
alleging the violations complained of and praying for appropriate
relief by way of mandamus or injunction, or both. Within ten days,
a rule to show cause hearing must be held, and the court must
either dismiss the petition or direct that a mandamus order or an
injunction, or both, be issued. A violation of this article by a
candidate during this one hundred day period must be considered to
be an irreparable injury for which no adequate remedy at law
exists. The institution of an action for injunctive relief does not
relieve any party to the proceeding from any penalty prescribed for
violations of this article. The court must award reasonable
attorneys fees and costs to the non-petitioning party if a petition
for mandamus or injunctive relief is dismissed based upon a finding
that the:
(i) petition is being presented for an improper purpose such
as harassment or to cause delay;
(ii) claims, defenses, and other legal contentions are not
warranted by existing law or are based upon a frivolous argument
for the extension, modification, or reversal of existing law or the
establishment of new law; and
(iii) allegations and other factual contentions do not have
evidentiary support or, if specifically so identified, are not
likely to have evidentiary support after reasonable opportunity for
further investigation or discovery.(B) If a complaint is filed against a candidate more than one
hundred days before a election, the Commission shall either dismiss the complaint or issue a finding of probable cause at least thirty
days before the election, unless the provisions of subdivision 3(A)
of this subsection may cause a court order to be issued.(c) The commission may subpoena witnesses, compel their
attendance and testimony, administer oaths and affirmations, take
evidence and require by subpoena the production of books, papers,
records or other evidence needed for the performance of the
commission's duties or exercise of its powers, including its duties
and powers of investigation.(c)(d) The commission shall, in addition to its other duties:
(1) Prescribe forms for reports, statements, notices, and
other documents required by law;
(2) Prepare and publish manuals and guides explaining the
duties of individuals covered by this law; and giving instructions
and public information materials to facilitate compliance with, and
enforcement of, this act; and
(3) Provide assistance to agencies, officials and employees in
administering the provisions of this act.(d)(e) The commission may:
(1) Prepare reports and studies to advance the purpose of the
law;
(2) Contract for any services which cannot satisfactorily be
performed by its employees;
(3) Request the attorney general to provide legal advice
without charge to the commission, and the attorney general shall
comply with the request;
(4) Employ additional legal counsel; and
(5) Request appropriate agencies of state to provide such
professional assistance as it may require in the discharge of its
duties: Provided, That any agency providing such assistance other
than the attorney general shall be reimbursed by the West Virginia
ethics commission the cost of such assistance.
§6B-2-2a. Public servant conduct review board.(a) There is hereby established a Public Servant Conduct
Review Board that shall conduct hearings to determine whether there
is probable cause to believe that a violation of the West Virginia
Governmental Ethics Act has occurred, and if so, to refer that
investigation to the Ethics Commission. The Review Board, whose
appointed members are randomly selected senior status judges of
this state, will review complaints received by the Ethics
Commission and cases developed through Ethics Commission
investigations to make the threshold determination whether probable
cause exists that a violation of the West Virginia Governmental
Ethics Act has occurred. Although resources and facilities of the
Ethics Commission shall be utilized the function of the Review
Board is quasi-judicial in nature and the Review Board is an
autonomous board, not under the direction or control of the Ethics
Commission.
(b) By the first day of March each year, The West Virginia
Judicial Association shall submit the names of all senior status
judges licences to practice law in West Virginia who have informed
the Judicial Association of their willingness to serve on the Review Board. The Commission shall cause a random selection of
three names from those submitted each year by the Judicial
Association which shall be designated as the three members of the
Review Board for the following term. Each one year term will begin
July one, and end June thirtieth of the following year. Each
person selected as a member of the Review Board shall be paid at
the rate senior status judges are paid by the state Supreme Court
for senior status appointments as circuit judge, and be reimbursed
expenses as provided to commission members pursuant to section one
of this chapter. These and all other costs incurred by the Review
Board shall be paid from the budget of the Ethics Commission.
(c) The Ethics Commission shall propose any procedural and
interpretative rules adopted by the Review Board for the operation
of the Review Board. The Commission shall propose these rules
pursuant to article three, chapter twenty-nine-a of the code.
(d) The Ethics Commission shall provide staffing and a
location for the Review Board to conduct hearings. The Ethics
Commission is authorized to employ and assign the necessary
professional and clerical staff to assist the Review Board in the
performance of its duties and commission staff shall, as the
commission deems appropriate, also serve as staff to the Review
Board. All investigations of the Review Board are deemed
confidential as provided in section four of this article.
(e) The Review Board may subpoena witnesses, compel their
attendance and testimony, administer oaths and affirmations, take
evidence and require by subpoena the production of books, papers, records or other evidence needed for the performance of the Board's
duties.

(a) Upon the filing by any person with the commission of a
complaint which is duly verified by oath or affirmation, the
executive director of the commission or his or her designee shall,
within three working days, acknowledge the receipt of the complaint
by first class mail, unless the complainant or his or her
representative personally filed the complaint with the commission
and was given a receipt or other acknowledgment evidencing the
filing of the complaint or the complaint was initiated by the
commission. Within fourteen days after the receipt of a complaint,
the executive directoran shall refer the complaint to the
investigative panel, Review Board, created pursuant to section two-
a of this article.shall be appointed toinvestigate the substance
of the allegations in the complaint and to determine whether there
is probable cause to believe that a violation of this chapter has
occurred. The commission shall establish by legislative rule
promulgated in accordance with chapter twenty-nine-a of this code
a rotation system for the selection of commission members to sit on
investigative panels whereby the caseload of commission
investigations is distributed among commission members as evenly
and randomly as possible.(b) In the case of a filed complaint,Upon the referral of a
complaint by the executive director pursuant to subsection (a) of this section, the first inquiry of the investigative panelReview
Board shall determinebe a question as to whether or not the
allegations of the complaint, if taken as true, would constitute a
violation of law upon which the commission could properly act under
the provisions of this chapter. If the complaint is determined by
a majority vote of the investigative panelReview Board to be
insufficient in this regard, the investigative panelReview Board
shall dismiss the complaint.
(c) After the commission receives a complaint found by the
investigative panelUpon a finding by the Review Board that the
complaint isto be sufficient, the executive director shall give
notice of a pending investigation by the investigative panel to the
complainant and respondent. The notice of investigation shall be
mailed to the parties, and, in the case of the respondent, shall be
mailed as certified mail, return receipt requested, marked
"Addressee only, personal and confidential." The notice shall
describe the conduct of the respondent which is the basis for an
alleged violation of law, and if a complaint has been filed, a copy
of the complaint shall be appended to the notice mailed to the
respondent. Each notice of investigation shall inform the
respondent that the purpose of the investigation is to determine
whether probable cause exists to believe that a violation of law
has occurred which may subject the respondent to administrative
sanctions by the commission, criminal prosecution by the state, or
civil liability. The notice shall further inform the respondent
that he or she has a right to appear before the investigative panelReview Board, and that he or she may respond in writing to the
commission within thirty days after the receipt of the notice, but
that no fact or allegation shall be taken as admitted by a failure
or refusal to timely respond.
(d) Within the forty-five day period following the mailing of
a notice of investigation, the investigative panelReview Board
shall proceed to consider: (1) The allegations raised in the
complaint; (2) any timely received written response of the
respondent; and (3) any other competent evidence gathered by or
submitted to the commission which has a proper bearing on the issue
of probable cause. A respondent shall be afforded the opportunity
to appear before the investigative panelReview Board and make an
oral response to the complaint. The commission shall, in
promulgating legislative rules pursuant to the provisions of
subsection (a), section two of this article, prescribe the manner
in which a respondent may present his or her oral response to the
investigative panel. The commission may request a respondent to
disclose specific amounts received from a source, and other
detailed information not otherwise required to be set forth in a
statement or report filed under the provisions of this chapter, if
the information sought is deemed to be probative as to the issues
raised by a complaint or an investigation initiated by the
commission. Any information thus received shall be confidential
except as provided by subsection (f)(e) of this section. If the
person so requested fails or refuses to furnish the information to
the commission, the commission may exercise its subpoena power as provided for elsewhere in this chapter, and any subpoena issued
thereunder shall have the same force and effect as a subpoena
issued by a circuit court of this state, and enforcement of any
such subpoena may be had upon application to a circuit court of the
county in which the investigative panelReview Board is conducting
an investigation, through the issuance of a rule or an attachment
against the respondent as in cases of contempt.
(e)(1) All investigations, complaints, reports, records,
proceedings, and other information received by the commission and
related to complaints made to the commission or investigations
conducted by the commission pursuant to this section, including the
identity of the complainant or respondent, shall be confidential
and shall not be knowingly and improperly disclosed by any member
or former member of the commission or its staff, except as follows:
(A) Upon a finding that probable cause exists to believe that
a respondent has violated the provisions of this chapter, the
complaint and all reports, records, non-privileged and
nondeliberative material introduced at any probable cause hearing
held pursuant to the complaint are thereafter not confidential:
Provided, That confidentiality of such information shall remain in
full force and effect until the respondent has been served by the
commission with a copy of the investigative panel'sReview Board
order finding probable cause and with the statement of charges
prepared pursuant to the provisions of subsection (g) of this
section. The Commission's review of all evidence presented shall be
de novo.
(B) After a finding of probable cause as aforesaid, any
subsequent hearing held in the matter for the purpose of receiving
evidence or the arguments of the parties or their representatives
shall be open to the public and all reports, records and
nondeliberative materials introduced into evidence at such
subsequent hearing, as well as the commission's orders, are not
confidential.
(C) The commission may release any information relating to an
investigation at any time if the release has been agreed to in
writing by the respondent.
(D) The complaint as well as the identity of the complainant
shall be disclosed to a person named as respondent in any such
complaint filed with the commission immediately upon such
respondent's request.
(E) Where the commission is otherwise required by the
provisions of this chapter to disclose such information or to
proceed in such a manner that disclosure is necessary and required
to fulfill such requirements.
(2) If, in a specific case, the commission finds that there is
a reasonable likelihood that the dissemination of information or
opinion in connection with a pending or imminent proceeding will
interfere with a fair hearing or otherwise prejudice the due
administration of justice, the commission shall order that all or
a portion of the information communicated to the commission to
cause an investigation and all allegations of ethical misconduct or
criminal acts contained in a complaint shall be confidential, and the person providing such information or filing a complaint shall
be bound to confidentiality until further order of the commission.
(f) If a majority of the members of the investigative panel
Review Board fail to find probable cause, the proceedings shall be
dismissed by the commission in an order signed by the majority
members of the panelReview Board, and copies of the order of
dismissal shall be sent to the complainant and served upon the
respondent forthwith. If the investigative panelReview Board
decides by a majority vote that there is probable cause to believe
that a violation under this chapter has occurred, the majority
members of the investigative panelReview Board shall sign an order
directing the commission staff to prepare a statement of charges,
to assign the matter for hearing to the commission or a hearing
examiner as the commission may subsequently direct. The Commission
shall then schedule a hearing to determine the truth or falsity of
the charges, such hearing to be held within ninety days after the
date of the order. For the purpose of this section, service of
process upon the respondent is obtained at the time the respondent
or the respondent's agent physically receives the process,
regardless of whether the service of process is in person or by
certified mail.
(g) At least eighty days prior to the date of the hearing, the
respondent shall be served by certified mail, return receipt
requested, with the statement of charges and a notice of hearing
setting forth the date, time and place for the hearing. The
scheduled hearing may be continued only upon a showing of good cause by the respondent or under such other circumstances as the
commission shall, by legislative rule, direct.
(h) The commission members who have not served as members of
an investigative panel in a particular case may sit as a hearing
board to adjudicate the case or may permit an assigned hearing
examiner employed by the commission to preside at the taking of
evidence. The commission shall, by legislative rule, establish the
general qualifications for hearing examiners. Such legislative
rule shall also contain provisions which seek to ensure that the
functions of a hearing examiner will be conducted in an impartial
manner, and shall describe the circumstances and procedures for
disqualification of hearing examiners.
(i) A member of the commission or a hearing examiner presiding
at a hearing may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses and
parties, and otherwise take testimony and establish a record;
(2) Rule on offers of proof and receive relevant evidence;
(3) Take depositions or have depositions taken when the ends
of justice may be served;
(4) Regulate the course of the hearing;
(5) Hold conferences for the settlement or simplification of
issues by consent of the parties;
(6) Dispose of procedural requests or similar matters;
(7) Accept stipulated agreements;
(8) Take other action authorized by the ethics commission consistent with the provisions of this chapter.
(j) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West
Virginia rules of evidence as used to govern proceedings in the
courts of this state shall be given like effect in hearings held
before the commission or a hearing examiner. The commission shall,
by legislative rule, regulate the conduct of hearings so as to
provide full procedural due process to a respondent. Hearings
before a hearing examiner shall be recorded electronically. When
requested by either of the parties, the presiding officer shall
make a transcript, verified by oath or affirmation, of each hearing
held and so recorded. In the discretion of the commission, a
record of the proceedings may be made by a certified court
reporter. Unless otherwise ordered by the commission, the cost of
preparing a transcript shall be paid by the party requesting the
transcript. Upon a showing of indigency, the commission may
provide a transcript without charge. Within fifteen days following
the hearing, either party may submit to the hearing examiner that
party's proposed findings of fact. The hearing examiner shall
thereafter prepare his or her own proposed findings of fact and
make copies of the findings available to the parties. The hearing
examiner shall then submit the entire record to the commission for
final decision.
(k) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, and the proposed findings of fact of the hearing examiner and the parties,
constitute the exclusive record for decision by the commission
members who have not served as members of the investigative panel,
unless by leave of the commission a party is permitted to submit
additional documentary evidence or take and file depositions or
otherwise exercise discovery.
(l) The commission shall set a time and place for the hearing
of arguments by the complainant and respondent, or their respective
representatives, and shall notify the parties thereof, and briefs
may be filed by the parties in accordance with procedural rules
promulgated by the commission. The final decision of the
commission shall be made by the commission members who have not
served as members of the investigative panel in writing within
forty-five days of the receipt of the entire record of a hearing
held before a hearing examiner or, in the case of an evidentiary
hearing held by the board in lieu of a hearing examiner, within
twenty-one days following the close of the evidence.
(m) A decision on the truth or falsity of the charges against
the respondent and a decision to impose sanctions must be approved
by at least sixseven members of the commission who have not served
as members of the investigative panel.
(n) Members of the commission shall recuse themselves from a
particular case upon their own motion with the approval of the
commission or for good cause shown upon motion of a party. The
remaining members of the commission shall, by majority vote, select
a temporary member of the commission to replace a recused member: Provided, That the temporary member selected to replace a recused
member shall be a person of the same status or category, provided
by subsection (b), section one of this article, as the recused
member.(o) Except for statements made in the course of official
duties to explain Commission procedures, Commission members and
staff may not make any public or nonpublic comment about any
proceeding previously or currently before the Commission, and shall
be subject to the penalties contained in subsection (e) of Section
ten of this article.(o)(p) A complainant may be assisted by a member of the
commission staff assigned by the commission after a determination
of probable cause.(p)(q) No member of the commission staff assigned to
prosecute a complaint and no member of the Review Board may
participate in the commission deliberations or communicate with
commission members or the public concerning the merits of a
complaint. after being assigned to prosecute a complaint(q)(r) If the commission finds by clear and convincing
evidence beyond a reasonable doubt that the facts alleged in the
complaint are true and constitute a material violation of this
article, it may impose one or more of the following sanctions:

(1) Public reprimand;

(2) Cease and desist orders;

(3) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter; or(4) Fines not to exceed onefive thousand dollars per
violation; or(5) Make reimbursement to the commission for the reasonable
actual costs of investigation.In addition to imposing such sanctions, the commission may
recommend to the appropriate governmental body that a respondent be
terminated from employment or removed from office.
The commission may institute civil proceedings in the circuit
court of the county wherein a violation occurred for the
enforcement of sanctions.All restitution to the commission for its actual incurred
costs shall be paid to the commission and thereafter deposited into
a special account to be appropriated by the Legislature for the
operation of the commission.(t)(s) At any stage of the proceedings under this section,
the commission may enter into a conciliation agreement with a
respondent if such agreement is deemed by a majority of the members
of the commission to be in the best interest of the state and the
respondent. Any conciliation agreement must be disclosed to the
public: Provided, That negotiations leading to a conciliation
agreement, as well as information obtained by the commission during
such negotiations, shall remain confidential except as may be
otherwise set forth in the agreement.(s)(t) Decisions of the commission involving the issuance of
sanctions may be appealed to the circuit court of Kanawha County,
West Virginia, or to the circuit court of the county where the violation is alleged to have occurred, only by the respondent, and
only upon the grounds set forth in section four, article five,
chapter twenty-nine-a of this code.(t)(u)In the event the commission finds in favor of the
person complained against, the commission shall order reimbursement
of all actual costs incurred, including, but not limited to,
attorney fees to be paid to the person complained against by the
complainant, if the commission finds that the complaint was brought
or made in bad faith. In addition, the aggrieved party shall have
a cause of action and be entitled to compensatory damages, punitive
damages, costs and attorney fees for a complaint made or brought in
bad faith.Any person who in good faith files a verified complaint
or any person, official, or agency who gives credible information
resulting in a formal complaint filed by commission staff is immune
from any civil liability that otherwise might result by reason of
such actions. In the event a person files a verified complaint or
who gives information resulting in a formal complaint filed by
commission staff which is determined by the commission to: (i)
Have been made maliciously or fraudulently, either knowing that the
statements contained therein were not true, or in reckless
disregard to the truth or falsity of material allegations contained
in the complaint; or (ii) have been made only to abuse the process
provided by this section, the commission may impose one or more of
the following sanctions on the complainant or the person who
provides the information resulting in a formal complaint filed by
the commission staff:
(1) Make reimbursement to the respondent for reasonable actual
costs incurred by the respondent;(2) Pay reasonable attorney fees incurred by the respondent;
and(3) Make reimbursement to the commission for the reasonable
actual costs of investigation.(u)(v) If at any stage in the proceedings under this section,
it appears to an investigative panela Review Board, a hearing
examiner or the commission that credible information or evidence
exists thata criminal violation may have been committed by a
respondent, such situation shall be brought before the full
commission for its consideration. If, by a vote of two thirds of
the full commission, it is determined that probable cause exists to
believe a criminal violation has occurred, it mayshall recommend
to the appropriate county prosecuting attorney having jurisdiction
over the case that a criminal investigation be commenced.
Deliberations of the commission with regard to a recommendation for
criminal investigation by a prosecuting attorney shall be private
and confidential. Notwithstanding any other provision of this
article, once a referral for criminal investigation is made under
the provisions of this subsection, the ethics proceedings shall be
held in abeyance until action on the referred matter is concluded.
If at least two-thirds of the commission in attendance determines
that a criminal violation has not occurred, the commission shall
remand the matter to the investigative panel, the hearing examiner
or the commission itself as a hearing board, as the case may be, for further proceedings under this article.(v)(x) The provisions of this section shall apply to
violations of this chapter occurring after the thirtieth day of
September, one thousand nine hundred eighty-nine, andafter the
thirtieth day of June, two thousand and five and within one year
three years before the filing of a complaint. under subsection (a)
of this section or the appointment of an investigative panel by the
commission under subsection (b) of this section.

§6B-2-5. Ethical standards for elected and appointed officials and
public employees.

(a) Persons subject to section. -- The provisions of this
section apply to all elected and appointed public officials and
public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local
governmental agency, including county school boards.
(b) Use of public office for private gain. -- (1) A public
official or public employee may not knowingly and intentionally use
his or her office or the prestige of his or her office for his or
her own private gain or that of another person. The performance of
usual and customary duties associated with the office or position
or the advancement of public policy goals or constituent services,
without compensation, does not constitute the use of prestige of
office for private gain.
(2) The Legislature, in enacting this subsection (b), relating
to the use of public office or public employment for private gain, recognizes that there may be certain public officials or public
employees who bring to their respective offices or employment their
own unique personal prestige which is based upon their
intelligence, education, experience, skills and abilities, or other
personal gifts or traits. In many cases, these persons bring a
personal prestige to their office or employment which inures to the
benefit of the state and its citizens. Such persons may, in fact,
be sought by the state to serve in their office or employment
because, through their unusual gifts or traits, they bring stature
and recognition to their office or employment and to the state
itself. While the office or employment held or to be held by such
persons may have its own inherent prestige, it would be unfair to
such individuals and against the best interests of the citizens of
this state to deny such persons the right to hold public office or
be publicly employed on the grounds that they would, in addition to
the emoluments of their office or employment, be in a position to
benefit financially from the personal prestige which otherwise
inheres to them. Accordingly, the commission is directed, by
legislative rule, to establish categories of such public officials
and public employees, identifying them generally by the office or
employment held, and offering persons who fit within such
categories the opportunity to apply for an exemption from the
application of the provisions of this subsection. Such exemptions
may be granted by the commission, on a case-by-case basis, when it
is shown that: (A) The public office held or the public employment
engaged in is not such that it would ordinarily be available or offered to a substantial number of the citizens of this state; (B)
the office held or the employment engaged in is such that it
normally or specifically requires a person who possesses personal
prestige; and (C) the person's employment contract or letter of
appointment provides or anticipates that the person will gain
financially from activities which are not a part of his or her
office or employment.
(c) Gifts. -- (1) A public official or public employee may not
solicit any gift unless the solicitation is for a charitable
purpose with no resulting direct pecuniary benefit conferred upon
the official or employee or his or her immediate family: Provided,
That no public official or public employee may solicit for a
charitable purpose any gift from any person who is also an official
or employee of the state and whose position as such is subordinate
to the soliciting official or employee: Provided, however, That
nothing herein shall prohibit a candidate for public office from
soliciting a lawful political contribution. No official or
employee may knowingly accept any gift, directly or indirectly,
from a lobbyist or from any person whom the official or employee
knows or has reason to know:
(A) Is doing or seeking to do business of any kind with his or
her agency;
(B) Is engaged in activities which are regulated or controlled
by his or her agency; or
(C) Has financial interests which may be substantially and
materially affected, in a manner distinguishable from the public generally, by the performance or nonperformance of his or her
official duties.
(2) Notwithstanding the provisions of subdivision (1) of this
subsection, a person who is a public official or public employee
may accept a gift described in this subdivision, and there shall be
a presumption that the receipt of such gift does not impair the
impartiality and independent judgment of the person. This
presumption may be rebutted only by direct objective evidence that
the gift did impair the impartiality and independent judgment of
the person or that the person knew or had reason to know that the
gift was offered with the intent to impair his or her impartiality
and independent judgment. The provisions of subdivision (1) of
this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or awards which have insignificant
monetary value;
(C) Unsolicited gifts of nominal value or trivial items of
informational value;
(D) Reasonable expenses for food, travel and lodging of the
official or employee for a meeting at which the official or
employee participates in a panel or has a speaking engagement at
the meeting;
(E) Gifts of tickets or free admission extended to a public
official or public employee to attend charitable, cultural or
political events, if the purpose of such gift or admission is a
courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member of
the same household.
(3) The commission shall, through legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, establish
guidelines for the acceptance of a reasonable honorarium by public
officials and elected officials. The rule promulgated shall be
consistent with this section. Any elected public official may
accept an honorarium only when: (1) That official is a part-time
elected public official; (2) the fee is not related to the
official's public position or duties; (3) the fee is for services
provided by the public official that are related to the public
official's regular, nonpublic trade, profession, occupation, hobby
or avocation; and (4) the honorarium is not provided in exchange
for any promise or action on the part of the public official.
(4) Nothing in this section shall be construed so as to
prohibit the giving of a lawful political contribution as defined
by law.
(5) The governor or his designee may, in the name of the state
of West Virginia, accept and receive gifts from any public or
private source. Any such gift so obtained shall become the
property of the state and shall, within thirty days of the receipt
thereof, be registered with the commission and the division of
culture and history.
(6) Upon prior approval of the joint committee on government
and finance, any member of the Legislature may solicit donations for a regional or national legislative organization conference or
other legislative organization function to be held in the state for
the purpose of deferring costs to the state for hosting of the
conference or function. Legislative organizations are bipartisan
regional or national organizations in which the joint committee on
government and finance authorizes payment of dues or other
membership fees for the Legislature's participation, and which
assist this and other state legislatures and their staff through
any of the following:
(i) Advancing the effectiveness, independence, and integrity
of legislatures in the states of the United States;
(ii) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(iii) Representing the states and their legislatures in the
American federal system of government;
(iv) Improving the operations and management of state
legislatures and the effectiveness of legislators and legislative
staff, and to encourage the practice of high standards of conduct
by legislators and legislative staff;
(v) Promoting cooperation between state legislatures in the
United States and legislatures in other countries.
The solicitations may only be made in writing. The
legislative organization may act as fiscal agent for the conference
and receive all donations. In the alternative, a bona fide banking
institution may act as the fiscal agent. The official letterhead
of the Legislature may not be used by the legislative member in conjunction with the fund raising or solicitation effort. The
legislative organization for which solicitations are being made
shall file with the joint committee on government and finance and
with the secretary of state for publication in the state register
as provided in article two of chapter twenty-nine-a of the code,
copies of letters, brochures and other solicitation documents,
along with a complete list of the names and last known addresses of
all donors and the amount of donations received. Any solicitation
by a legislative member shall contain the following disclaimer:

"This solicitation is endorsed by [name of member]. This
endorsement does not imply support of the soliciting
organization, nor of the sponsors who may respond to the
solicitation. A copy of all solicitations are on file
with the West Virginia Legislature's Joint Committee on
Government and Finance, and with the Secretary of State,
and are available for public review."

(7) Upon written notice to the commission, any member of the
board of public works may solicit donations for a regional or
national organization conference or other function related to the
office of the member to be held in the state for the purpose of
deferring costs to the state for hosting of the conference or
function. The solicitations may only be made in writing. The
organization may act as fiscal agent for the conference and receive
all donations. In the alternative, a bona fide banking institution
may act as the fiscal agent. The official letterhead of the office
of the board of public works member may not be used in conjunction with the fund raising or solicitation effort. The organization for
which solicitations are being made shall file with the joint
committee on government and finance, with the secretary of state
for publication in the state register as provided in article two of
chapter twenty-nine-a of the code and with the commission, copies
of letters, brochures and other solicitation documents, along with
a complete list of the names and last known addresses of all donors
and the amount of donations received. Any solicitation by a member
of the board of public works shall contain the following
disclaimer: "This solicitation is endorsed by (name of member of
board of public works.) This endorsement does not imply support of
the soliciting organization, nor of the sponsors who may respond to
the solicitation. Copies of all solicitations are on file with the
West Virginia Legislature's Joint Committee on Government and
Finance, with the West Virginia Secretary of State and with the
West Virginia Ethics Commission, and are available for public
review." Any monies in excess of those donations needed for the
conference or function shall be deposited in the Capitol Dome and
Capitol Improvement Fund established in section two, article four
of chapter five-a of this code.
(d) Interests in public contracts. -- (1) In addition to the
provisions of section fifteen, article ten, chapter sixty-one of
this code, no elected or appointed public official or public
employee or member of his or her immediate family or business with
which he or she is associated may be a party to or have an interest
in the profits or benefits of a contract which such official or employee may have direct authority to enter into, or over which he
or she may have control: Provided, That nothing herein shall be
construed to prevent or make unlawful the employment of any person
with any governmental body: Provided, however, That nothing herein
shall be construed to prohibit a member of the Legislature from
entering into a contract with any governmental body, or prohibit a
part-time appointed public official from entering into a contract
which such part-time appointed public official may have direct
authority to enter into or over which he or she may have control
when such official has not participated in the review or evaluation
thereof, has been recused from deciding or evaluating and has been
excused from voting on such contract and has fully disclosed the
extent of such interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an
elected or appointed public official or public employee or a member
of his or her immediate family or a business with which he or she
is associated shall not be considered as having an interest in a
public contract when such a person has a limited interest as an
owner, shareholder or creditor of the business which is the
contractor on the public contract involved. A limited interest for
the purposes of this subsection is:

(A) An interest:

(i) Not exceeding ten percent of the partnership or the
outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or

(B) An interest as a creditor:

(i) Not exceeding ten percent of the total indebtedness of a
business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this
subsection would result in the loss of a quorum in a public body or
agency, in excessive cost, undue hardship, or other substantial
interference with the operation of a state, county, municipality,
county school board or other governmental agency, the affected
governmental body or agency may make written application to the
ethics commission for an exemption from subdivisions (1) and (2) of
this subsection.
(e) Confidential information. -- No present or former public
official or employee may knowingly and improperly disclose any
confidential information acquired by him or her in the course of
his or her official duties nor use such information to further his
or her personal interests or the interests of another person.
(f) Prohibited representation. -- No present or former elected
or appointed public official or public employee shall, during or
after his or her public employment or service, represent a client
or act in a representative capacity with or without compensation on
behalf of any person in a contested case, rate-making proceeding,
license or permit application, regulation filing or other
particular matter involving a specific party or parties which arose
during his or her period of public service or employment and in which he or she personally and substantially participated in a
decision-making, advisory or staff support capacity, unless the
appropriate government agency, after consultation, consents to such
representation. A staff attorney, accountant or other professional
employee who has represented a government agency in a particular
matter shall not thereafter represent another client in the same or
substantially related matter in which that client's interests are
materially adverse to the interests of the government agency,
without the consent of the government agency: Provided, That this
prohibition on representation shall not apply when the client was
not directly involved in the particular matter in which such
professional employee represented the government agency, but was
involved only as a member of a class. The provisions of this
subsection shall not apply to legislators who were in office and
legislative staff who were employed at the time it originally
became effective on the first day of July, one thousand nine
hundred eighty-nine, and those who have since become legislators or
legislative staff and those who shall serve hereafter as
legislators or legislative staff.
(g) Limitation on practice before a board, agency, commission
or department. -- (1) No elected or appointed public official and
no full-time staff attorney or accountant shall, during his or her
public service or public employment or for a period of six months
one year after the termination of his or her public service or
public employment with a governmental entity authorized to hear
contested cases or promulgate regulations, appear in a representative capacity before the governmental entity in which he
or she serves or served or is or was employed in the following
matters:
(A) A contested case involving an administrative sanction,
action or refusal to act;
(B) To support or oppose a proposed regulation;
(C) To support or contest the issuance or denial of a license
or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any
formal or informal appearance before, or any written or oral
communication with, any public agency on behalf of any person:
Provided, That nothing contained in this subsection shall prohibit,
during any period, a former public official or employee from being
retained by or employed to represent, assist, or act in a
representative capacity on behalf of the public agency by which he
or she was employed or in which he or she served. Nothing in this
subsection shall be construed to prevent a former public official
or employee from representing another state, county, municipal or
other governmental entity before the governmental entity in which
he or she served or was employed within six monthsone year after
the termination of his or her employment or service in the entity.
(3) A present or former public official or employee may appear
at any time in a representative capacity before the Legislature, a
county commission, city or town council or county school board in relation to the consideration of a statute, budget, ordinance,
rule, resolution or enactment.
(4) Members and former members of the Legislature and
professional employees and former professional employees of the
Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of the
state, or of county or municipal governments including county
school boards.(5) An elected or appointed public official, full-time staff
attorney or accountant who would be adversely affected by the
provisions of this subsection may apply to the ethics commission
for an exemption from the six months prohibition against appearing
in a representative capacity, when the person's education and
experience is such that the prohibition would, for all practical
purposes, deprive the person of the ability to earn a livelihood in
this state outside of the governmental agency. The ethics
commission shall by legislative rule establish general guidelines
or standards for granting an exemption or reducing the time period,
but shall decide each application on a case-by-case basis.
(h) Employment by regulated persons. -- (1) No full-time
official or full-time public employee may seek employment with, be
employed by, or seek to sell or lease real or personal property to,
or purchase or lease real or personal property from, any person
who:
(A) Had a matter on which he or she took, or a subordinate is
known to have taken, regulatory action within the preceding twelve months; or
(B) Has a matter before the agency to which he or she is
working or a subordinate is known by him or her to be working.
(2) Within the meaning of this section, the term "employment"
includes professional services and other services rendered by the
public official or public employee, whether rendered as employee or
as an independent contractor; "seek employment" includes responding
to unsolicited offers of employment as well as any direct or
indirect contact with a potential employer relating to the
availability or conditions of employment in furtherance of
obtaining employment; and "subordinate" includes only those agency
personnel over whom the public servant has supervisory
responsibility.
(3) A full-time public official or full-time public employee
who would be adversely affected by the provisions of this
subsection may apply to the ethics commission for an exemption from
the prohibition contained in subsection (1). The ethics commission
shall by legislative rule establish general guidelines or standards
for granting an exemption, but shall decide each application on a
case-by-case basis.
(4) A full-time public official or full-time public employee
may not take personal regulatory action on a matter affecting a
person by whom he or she is employed or with whom he or she is
seeking employment or has an agreement concerning future
employment.
(5) A full-time public official or full-time public employee may not receive private compensation for providing information or
services that he or she is required to provide in carrying out his
or her public job responsibilities.
(i) Members of the Legislature required to vote. -- Members of
the Legislature who have asked to be excused from voting or who
have made inquiry as to whether they should be excused from voting
on a particular matter and who are required by the presiding
officer of the House of Delegates or Senate of West Virginia to
vote under the rules of the particular house shall not be guilty of
any violation of ethics under the provisions of this section for a
vote so cast.
(j) Limitations on participation in licensing and rate-making
proceedings. -- No public official or employee may participate
within the scope of his or her duties as a public official or
employee, except through ministerial functions as defined in
section three, article one of this chapter, in any license or
rate-making proceeding that directly affects the license or rates
of any person, partnership, trust, business trust, corporation or
association in which the public official or employee or his or her
immediate family owns or controls more than ten percent. No public
official or public employee may participate within the scope of his
or her duties as a public official or public employee, except
through ministerial functions as defined in section three, article
one of this chapter, in any license or rate-making proceeding that
directly affects the license or rates of any person to whom the
public official or public employee or his or her immediate family, or a partnership, trust, business trust, corporation or association
of which the public official or employee, or his or her immediate
family, owns or controls more than ten percent, has sold goods or
services totaling more than one thousand dollars during the
preceding year, unless the public official or public employee has
filed a written statement acknowledging such sale with the public
agency and the statement is entered in any public record of the
agency's proceedings. This subsection shall not be construed to
require the disclosure of clients of attorneys or of patients or
clients of persons licensed pursuant to articles three, eight,
fourteen, fourteen-a, fifteen, sixteen, twenty, twenty-one or
thirty-one, chapter thirty of this code.(k) Certain compensation prohibited. -- (1) A public employee
may not receive compensation from two separate public employment
positions, for the identical time period, unless:
(A) The public employee's compensation from one employer is
reduced by the amount of compensation received from the other
public employer;
(B) The public employee has his or her compensation reduced on
a pro rata basis for any hours of work missed while performing the
duties of the other public employment; or
(C) The public employee uses earned paid vacation, personal or
compensatory time or takes unpaid leave from one public employment
to perform the duties of the other public employment.
In order to ensure compliance with this subsection, a public
employee subject to this subsection shall disclose the amounts received from the two separate public employment positions to the
commission on a quarterly basis, in a manner set forth in rules
established by the commission.(k)(l)Certain expenses prohibited. -- No public official
or public employee shall knowingly request or accept from any
governmental entity compensation or reimbursement for any expenses
actually paid by a lobbyist and required by the provisions of this
chapter to be reported, or actually paid by any other person.(l)(m) Any person who is employed as a member of the faculty
or staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication activities
in his or her field of expertise with public or private entities
and thereby derives private benefits from such activities shall be
exempt from the prohibitions contained in subsections (b), (c) and
(d) of this section when the activity is approved as a part of an
employment contract with the governing board of such institution or
has been approved by the employees' department supervisor or the
president of the institution by which the faculty or staff member
is employed.(m)(n) Except as provided in this section, a person who is a
public official or public employee may not solicit private business
from a subordinate public official or public employee whom he or
she has the authority to direct, supervise or control. A person
who is a public official or public employee may solicit private
business from a subordinate public official or public employee whom
he or she has the authority to direct, supervise or control when:
(A) The solicitation is a general solicitation directed to the
public at large through the mailing or other means of distribution
of a letter, pamphlet, handbill, circular or other written or
printed media; or
(B) The solicitation is limited to the posting of a notice in
a communal work area; or
(C) The solicitation is for the sale of property of a kind
that the person is not regularly engaged in selling; or
(D) The solicitation is made at the location of a private
business owned or operated by the person to which the subordinate
public official or public employee has come on his or her own
initiative.(o)Submission of false information. -- (1) No person may
knowingly give false or misleading material information to the
commission, nor may any person induce or procure another persons tp
give false or misleading material information to the commission.
A person found to be in violation of this subsection is
subject to the penalties set forth in subsection (q), section four
of this article.(n)(p) The commission by legislative rule promulgated in
accordance with chapter twenty-nine-a of this code may define
further exemptions from this section as necessary or appropriate.§6B-2-5b. Ethics training requirements.
An individual who, on or after the effective date of this
subsection, is elected or appointed to serve in the Legislature, as
a member of the board of public works, and those positions in the executive branch of state government which the governor designates
by executive order, shall, within six months of filling such
position, attend a training course conducted by the ethics
commission on the requirements of the Ethics Act: Provided, That
a public servant who previously has completed a training course
provided by the ethics commission is not required to attend.§6B-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this article
shall contain the following information:
(1) The name, residential and business addresses of the person
filing the statement and all names under which the person does
business.

(2) The name and address of each employer of the person.

(3) The name and address of each business in which the person
filing the statement has or had in the last year an interest of ten
thousand dollars at fair market value or five percent (5%)
ownership interest, if that interest exceeds ten thousand dollars.(3)(4) The identification, by category, of every source of
income over fiveone thousand dollars received during the preceding
calendar year, in his or her own name or by any other person for
his or her use or benefit, by the person filing the statement and
a brief description of the nature of the services for which the
income was received. This subdivision does not require a person
filing the statement who derives income from a business, profession
or occupation to disclose the individual sources and items of
income that constitute the gross income of that business, profession or occupation nor does this subdivision require a person
filing the statement to report the source or amount of income
derived by his or her spouse.(4)(5) If the person, profited or benefitted in the year
prior to the date of filing from a contract for the sale of goods
or services to a state, county, municipal or other local
governmental agency either directly or through a partnership,
corporation or association in which such person owned or controlled
more than ten percent, the person shall describe the nature of the
goods or services and identify the governmental agencies which
purchased the goods or services.(5)(6) Each interest group or category listed below doing
business in this state with which the person filing the statement,
did business or furnished services and from which the person
received more than twenty percent of the person's income during the
preceding calendar year. The groups or categories are electric
utilities, gas utilities, telephone utilities, water utilities,
cable television companies, interstate transportation companies,
intrastate transportation companies, oil or gas retail companies,
banks, savings and loan associations, loan or finance companies,
manufacturing companies, surface mining companies, deep mining
companies, mining equipment companies, chemical companies,
insurance companies, retail companies, beer, wine or liquor
companies or distributors, recreation related companies, timbering
companies, hospitals or other health care providers, trade
associations, professional associations, associations of public employees or public officials, counties, cities or towns, labor
organizations, waste disposal companies, wholesale companies,
groups or associations seeking to legalize gambling, gaming or
lotteries, advertising companies, media companies, race tracks and
promotional companies.(6)(7) The names of all persons, excluding that person's
immediate family, parents, or grandparents residing or transacting
business in the state to whom the person filing the statement,
owes, on the date of execution of this statement in the aggregate
in his or her own name or in the name of any other person more than
twelvefive thousand five hundred dollars: Provided, That nothing
herein shall require the disclosure of a mortgage on the person's
primary and secondary residences or of automobile loans on
automobiles maintained for the use of the person's immediate
family, or of a student loan, nor shall this section require the
disclosure of debts which result from the ordinary conduct of such
person's business, profession, or occupation or of debts of the
person filing the statement to any financial institution, credit
card company, or business, in which the person has an ownership
interest: Provided, however, That the previous proviso shall not
exclude from disclosure loans obtained pursuant to the linked
deposit program provided for in article one-a, chapter twelve of
this code or any other loan or debt incurred which requires
approval of the state or any of its political subdivisions.(7)(8) The names of all persons except immediate family
members, parents and grandparents residing or transacting business in the state (other than a demand or savings account in a bank,
savings and loan association, credit union or building and loan
association or other similar depository) who owes on the date of
execution of this statement, more, in the aggregate, than twelve
five thousand five hundred dollars to the person filing the
statement, either in his or her own name or to any other person for
his or her use or benefit. This subdivision does not require the
disclosure of debts owed to the person filing the statement which
debts result from the ordinary conduct of such person's business,
profession or occupation or of loans made by the person filing the
statement to any business in which the person has an ownership
interest.
(9) The source of each gift including those described in
subdivision (2) of subsection (c) section five of this article
having a value of over one hundred dollars, received from a person
having a direct and immediate interest in a governmental activity
over which the person filing the statement has control, shall be
reported by the person filing the statement when such gift is given
to said person in his or her name or for his or her use or benefit
during the preceding calendar year: Provided, That gifts received
by will or by virtue of the laws of descent and distribution, or
received from one's spouse, child, grandchild, parents or
grandparents, or received by way of distribution from an inter
vivos or testamentary trust established by the spouse or child,
grandchild, or by an ancestor of the person filing the statement
are not required to be reported: Provided further, That those gifts described in subdivision (2), subsection (c), section five of
this article that are otherwise required to be reported under
section four, article three of this chapter are not required to be
reported. As used in this subdivision any series or plurality of
gifts which exceeds in the aggregate the sum of one hundred dollars
from the same source or donor, either directly or indirectly, and
in the same calendar year, shall be regarded as a single gift in
excess of that aggregate amount.

(10) The signature of the person filing the statement.

§6B-2-9. Special prosecutor authorized
(a) If after referral to the appropriate county prosecuting
attorney under subsection (v), section four of this article the
ethics commission finds as the result of an investigation of a
complaint that a pattern of ethics violations or criminal
violations has occurred under this chapter or under article five-a,
chapter sixty-one of this code, exists in a state, county or
covered municipal government, county school board or one of their
respective departments, agencies, boards or commissions, and also
finds that the prosecuting attorney of the county in which the
violation occurred is, for some reason, unable or unwilling to take
appropriate action, the chairman of the ethics commission may, upon
a two-thirds vote of the members of the ethics commission, petition
the appropriate circuit court for the appointment of a special
prosecutor for the purpose of conducting an investigation to
determine whether a violation of the criminal law of this state has
occurred.
(b) A special prosecutor shall have the same authority as a
county prosecutor to investigate and prosecute persons subject to
this article for criminal violations committed in connection with
their public office or employment which constitute felonies. No
person who is serving as a prosecuting attorney or assistant
prosecuting attorney of any county is required to take an
additional oath when appointed to serve as a special prosecuting
attorney.
(c) The ethics committee shall be authorized to employ and
assign the necessary professional and clerical staff to assist any
such special prosecutor in the performance of his or her duties and
to pay and to set the compensation to be paid to a special
prosecutor in an amount not to exceed seventy-five dollars per hour
up to a maximum of fifty thousand dollars per annum.
(d) The special prosecutor shall be empowered to make a
presentment to any regularly or specially impaneled grand jury in
the appointing circuit court. The special prosecutor shall be
empowered to prosecute any person indicted by such grand jury.§6B-2-10. Violations and penalties.
(a) If any person violates the provisions of subsection (e),
(f) or (g), section five of this article, or violates the
provisions of subdivision (1), subsection (e), section four of this
article, such person, upon conviction thereof, shall be guilty of
a misdemeanor, and shall be punished by confinement in the county
jail for a period not to exceed six months or shall be fined not
more than one thousand dollars, or both such confinement and fine. If any person violating the provisions of subdivision (1),
subsection (e), section four of this article shall be a member of
the commission or an employee thereof, he or she shall, upon
conviction, be subject to immediate removal or discharge.
(b) If any person violates the provisions of subsection (f),
section six of this article by willfully and knowingly filing a
false financial statement, concealing a material fact or otherwise
committing a fraud in filing the statement, such person is guilty
of a misdemeanor and,shall, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in a jail not
more than one year, or both fined and confined.be deemed guilty
of false swearing and shall be punished as provided in section
three, article five, chapter sixty-one of this code.
(c) If any person knowingly fails or refuses to file a
financial statement required by section six of this article, such
person, upon conviction thereof, shall be guilty of a misdemeanor,
and shall be fined not less than one hundred dollars nor more than
one thousand dollars.
(d) If any complainant violates the provisions of subdivision
(2), subsection (f)(e), section four, article two of this chapter
of this article, by knowingly and willfully disclosing any
information made confidential by an order of the commission, he or
she shall be subject to administrative sanction by the commission
as provided for in subsection (r), section four of this article.(e) If any commission member or staff knowingly violates
subsection (o), section four of this article, such person, upon conviction thereof, shall be guilty of a misdemeanor, and shall be
fined not less than one hundred dollars nor more than one thousand
dollars.

§6B-2-12. Full disclosure required of nonprofit organizations
receiving State funds.

(a) A nonprofit organization which receives more than a de
minimis amount of state grant moneys or other financial assistance
from the state, and pays a salary of more than fifty thousand
dollars to any of its directors, officers or employees, shall file
with the commission, on forms prescribed by the commission, a
financial report which sets forth the compensation of its
directors, officers, and managerial employees for the preceding
fiscal year.
(1) The forms shall be filed by the fifth day of February two
thousand six, and annually thereafter.
(2) Any person who is subject to the requirements of this
section who fails or refuses to file a report or who willfully and
knowingly makes a false statement, conceals a material fact or
otherwise commits a fraud in the report, may be subject to a
complaint filed with the commission and proceeded against in the
same manner as a public officer or public employee under the
provisions of this chapter, including the imposition of civil
penalties.
(b) Each agency of state government that awards state funded
grants or distributes state funds to a nonprofit organization shall
file with the commission a listing of funds distributed to the nonprofit organization for the preceding fiscal year by the first
day of August, two thousand five and annually thereafter.
(c) The commission may propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code.
(d) The commission may promulgate emergency rules pursuant to
the provisions of section fifteen, article three, chapter
twenty-nine-a of this code.ARTICLE 3. LOBBYISTS.
§6B-3-1. Definitions
As used in this article, unless the context in which used
clearly indicates otherwise:
(1) "Compensation" means money or any other thing of value
received or to be received by a lobbyist from an employer for
services rendered.
(2) "Employer" or "lobbyist's employer" means any person who
employs or retains a lobbyist.
(3) "Expenditure" means payment, distribution, loan, advance
deposit, reimbursement, or gift of money, real or personal property
or any other thing of value; or a contract, promise or agreement,
whether or not legally enforceable.
(4) "Government officer or employee" means a member of the
Legislature, a legislative employee, the governor and other members
of the board of public works, heads of executive departments, and
any other public officer or public employee under the legislative
or executive branch of state government who is empowered or authorized to make policy and perform non-ministerial functions.
In the case of elected offices included herein, the term
"government officer or employee" shall include candidates who have
been elected but who have not yet assumed office.
(5) "Legislation" means bills, resolutions, motions,
amendments, nominations, and other matters pending or proposed in
either house of the Legislature, and includes any other matters
that may be the subject of action by either house or any committee
of the Legislature and all bills or resolutions that, having passed
both houses, are pending approval or veto by the governor.
(6) "Lobbying" or "lobbying activity" means the act of
communicating with a government officer or employee to promote,
advocate or oppose or otherwise attempt to influence:
(i) The passage or defeat or the executive approval or veto of
any legislation which may be considered by the Legislature of this
state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated
legislative or quasi-legislative action to be taken or withheld by
any executive department.
(7) "Lobbying firm" means any business entity, including an
individual contract lobbyist, which meets either of the following
criteria:
(A) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, for the purpose of lobbying on behalf of any other person, and any partner, owner, officer, or employee of the
business entity.(B) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, to communicate directly with any elective state
official, agency official, or legislative official for the purpose
of lobbying on behalf of any other person.(8)(A) "Lobbyist" means a person who, through communication
with a government officer or employeeany individual who is
employed or contracts for economic consideration, other than
reimbursement for reasonable travel expenses, to communicate
directly or through his or her agents with any elective state
official, agency official or legislative official for the purpose
ofpromotes, advocates or opposespromoting, advocating, opposing
or otherwise attemptsattempting to influence:
(i) The passage or defeat or the executive approval or veto of
any legislation which may be considered by the Legislature of this
state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated
legislative or quasi-legislative action to be taken or withheld by
any executive department.
(B) The term "lobbyist" shall not include the following
persons, who shall be exempt from the registration and reporting
requirements set forth in this article, unless such persons engage
in activities which would otherwise subject them to the registration and reporting requirements:
(i) Persons who limit their lobbying activities to appearing
before public sessions of committees of the Legislature, or public
hearings of state agencies, are exempt.
(ii) Persons who limit their lobbying activities to attending
receptions, dinners, parties or other group functions and make no
expenditure in connection with such lobbying are exempt.
(iii) Persons who engage in news or feature reporting
activities and editorial comment as working members of the press,
radio, or television and persons who publish or disseminate such
news, features or editorial comment through a newspaper, book,
regularly published periodical, radio station or television
station, are exempt.
(iv) Persons who lobby without compensation or other
consideration for acting as lobbyists, other than reimbursement for
reasonable travel expenses, or who are not employed by a lobbying
firm or lobbyist employer, and whose total expenditures in
connection with such lobbying do not exceed twenty-five dollars
during any calendar year, are exempt. The exemption contained in
this subparagraph (iv) and subparagraph (ii) are intended to permit
and encourage citizens of this state to exercise their
constitutional rights to assemble in a peaceable manner, consult
for the common good, instruct their representatives, and apply for
a redress of grievances. Accordingly, such persons may lobby
without incurring any registration or reporting obligation under
this article. Any person exempt under this subparagraph (iv) or subparagraph (ii) may at his or her option register and report
under this article.
(v) Persons who lobby on behalf of a nonprofit organization
with regard to legislation, without compensation, and who restrict
their lobbying activities to no more than twenty days or parts
thereof during any regular session of the Legislature, are exempt.
The commission may promulgate a legislative rule to require
registration and reporting by persons who would otherwise be exempt
under this subparagraph, if it determines that such rule is
necessary to prevent frustration of the purposes of this article.
Any person exempt under this subparagraph may at his or her option
register and report under this article.
(vi) The governor, members of the governor's staff, members of
the board of public works, officers and employees of the executive
branch who communicate with a member of the Legislature on the
request of that member, or who communicate with the Legislature,
through the proper official channels, requests for legislative
action or appropriations which are deemed necessary for the
efficient conduct of the public business or which are made in the
proper performance of their official duties, are exempt.
(vii) Members of the Legislature are exempt.
(viii) Persons employed by the Legislature for the purpose of
aiding in the preparation or enactment of legislation or the
performance of legislative duties are exempt.
(ix) Persons rendering professional services in drafting
proposed legislation or in advising or rendering opinions to clients as to the construction and effect of proposed or pending
legislation are exempt.(8)(9) "Person" means any individual, partnership, trust,
estate, business trust, association, or corporation; any
department, commission, board, publicly supported college or
university, division, institution, bureau, or any other
instrumentality of the state; or any county, municipal corporation,
school district or any other political subdivision of the state.§6B-3-2. Registration of lobbyists.

(a) Before engaging in any lobbying activity, or within thirty
days after being employed as a lobbyist, whichever occurs first, a
lobbyist shall register with the ethics commission by filing a
lobbyist registration statement. The registration statement shall
contain information and be in a form prescribed by the ethics
commission by legislative rule, including, but not limited to, the
following information:
(1) The registrant's name, business address, telephone numbers
and any temporary residential and business addresses and telephone
numbers used or to be used by the registrant while lobbying during
a legislative session;
(2) The name, address and occupation or business of the
registrant's employer;
(3) A statement as to whether the registrant is employed or
retained by his or her employer solely as a lobbyist or is a
regular employee performing services for the employer which
include, but are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or
retained by his or her employer under any agreement, arrangement or
understanding according to which the registrant's compensation, or
any portion of the registrant's compensation, is or will be
contingent upon the success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the
registrant will lobby or employ some other person to lobby in a
manner which requires registration under this article; and
(6) An appended written authorization from each of the
lobbyist's employers confirming the lobbyist's employment and the
subjects on which the employer is to be represented.
(b) Any lobbyist who receives or is to receive compensation
from more than one person for services as a lobbyist shall file a
separate notice of representation with respect to each person
compensating him or her for services performed as a lobbyist. When
a lobbyist whose fee for lobbying with respect to the same subject
is to be paid or contributed by more than one person, then the
lobbyist may file a single statement, in which he or she shall
detail the name, business address and occupation of each person
paying or contributing to the fee.
(c) Whenever a change, modification or termination of the
lobbyist's employment occurs, the lobbyist shall, within one week
of the change, modification or termination, furnish full
information regarding the change, modification or termination by
filing with the commission an amended registration statement.
(d) Each lobbyist who has registered shall file a new registration statement, revised as appropriate, on the Monday
preceding the second Wednesday in January of each odd-numbered
year, and failure to do so terminates his or her registration
authorization to lobby. Until the registration is renewed, the
person may not engage in lobbying activities unless he or she is
otherwise exempt under paragraph (B), subdivision (7), section one
of this article.§6B-3-3a. Registration fees.
(a) Each lobbyist shall, at the time he or she registers, pay
the commission a baseregistration fee of sixtyone hundreddollars
plus one hundred dollars for each employer representedto be filed
with the initial registration statement and with each new
registration statement filed by the lobbyist in subsequent odd
numbered years: Provided, That if a lobbyist files his or her
initial registration after the first day of January during an even-
numbered year, he or she shall only be required to pay a reduced
registration fee of thirty dollars for the balance of that year
Whenever a lobbyist modifies his or her registration to add
additional employers an additional registration fee of one hundred
dollars for each additional employer represented shall be paid to
the Commission.(b) The commission shall collect the registration fees
authorized by this section and pay them into the state treasury to
the credit of the state general fund.(b) All fees authorized and collected pursuant to this article
shall be paid to the ethics commission and thereafter deposited into a special account to be appropriated by the Legislature for
the operation of the commission in administering this article and
article two of this chapter.§6B-3-3b. Conflict of interest.
A lobbyist or a lobbyist's immediate family member may not
participate in any decision as a member of a state or county board,
council, commission, or public service district if the lobbyist may
receive direct economic or pecuniary benefit from a decision of
that state or county board, council, commission, or public service
district. This disqualification must be such as to affect the
member directly and not a class.§6B-3-3c. Lobbyist training course.
The commission shall provide a training course for registered
lobbyists and prospective lobbyists at least twice each year
regarding the provisions of the ethics code relevant to lobbyists.
One such course shall be conducted during the month of January. In
addition to the registration fees authorized in section three-a of
this article, the commission may collect a reasonable fee from
those attending lobbyist training, such fees to be paid to the
ethics commission and deposited in a special account to be
appropriated by the Legislature for the operation of the
commission. To maintain registration and engage in lobbying
activities, a lobbyist must complete one such training course per
year.§6B-3-4. Reporting by lobbyists.
(a) A registered lobbyist shall file with the commission reports of his or her lobbying activities, signed by the lobbyist.
The reports shall be filed on a quarterly basis as follows:
(1) On or before the Monday preceding the second Wednesday in
January of each yearthe fifteenth day of April, a lobbyist shall
file an annual report of all lobbying activities which he or she
engaged in from the first day of January through the thirty-first
day of March;during the preceding calendar year; and(2) On or before the fifteenth day of July, a lobbyist shall
report all lobbying activities which he or she engaged in from the
first day of April through the thirtieth day of June;(3) On or before the fifteenth day of October, a lobbyist
shall report all lobbying activities which he or she engaged in
from the first day of July through the thirtieth day of September;
and(4) On or before the fifteenth day of January, a lobbyist
shall report all lobbying activities which he or she engaged in
from the first day of October through the thirty-first day of
December.(b) In the event the date a lobbyist expenditure report is due
falls on a Saturday, Sunday, or legal holiday, the report is timely
filed if it is postmarked not later than the next business day. In
the event a registered lobbyist files a late report, the lobbyist
shall pay the commission a fee of ten dollars for each late day,
not to exceed a total of two hundred and fifty dollars. Should a
registered lobbyist fail to file a report, or pay the required fee
for filing an untimely report, the commission may, after written notice sent by registered mail, return receipt requested, suspend
the lobbyist's privileges as a registered lobbyist until the
lobbyist has satisfactorily complied with all reporting
requirements and paid the required fee.(2) If a lobbyist engages in lobbying with respect to
legislation, then:(A) Between the fortieth and forty-fifth days of any regular
session of the Legislature in which any lobbying occurred, the
lobbyist shall file a report describing all of his or her lobbying
activities which occurred since the beginning of the calendar year;
and(B) Within twenty-one days after the adjournment sine die of
any regular or extraordinary session of the Legislature in which
any lobbying occurred, the lobbyist shall file a report describing
all of his or her lobbying activities which occurred since the
beginning of the calendar year or since the filing of the last
report required by this section, whichever is later.(b)(c) (1) Except as otherwise provided in this section, each
report filed by a lobbyist shall show the total amount of all
expenditures for lobbying made or incurred by the lobbyist, or on
behalf of the lobbyist, by the lobbyist's employer during the
period covered by the report. The report shall also show subtotals
segregated according to financial category, including meals and
beverages; living accommodations; advertising; travel;
contributions; gifts to public officials or employees or to members
of the immediate family of a public official or employee; and other expenses or services.

(2) Lobbyists are not required to report the following:

(A) Unreimbursed personal living and travel expenses not
incurred directly for lobbying;
(B) Any expenses incurred for his or her own living
accommodations;
(C) Any expenses incurred for his or her own travel to and
from public meetings or hearings of the legislative and executive
branches; and
(D) Any expenses incurred for telephone, and any office
expenses, including rent and salaries and wages paid for staff and
secretarial assistance. and(E) Separate expenditures to or on behalf of a public official
or employee in an amount of less than five dollars.(c)(d) If a lobbyist is employed by more than one employer,
the report shall show the proportionate amount of the expenditures
in each category incurred on behalf of each of his or her
employers.(d)(e) The report shall describe the subject matter of the
lobbying activities in which the lobbyist has been engaged during
the reporting period.(e)(f) If, during the period covered by the report, the
lobbyist made expenditures or such expenditures were made or
incurred on behalf of the lobbyist in the reporting categories of
meals and beverages, living accommodations, travel, gifts or other
expenditures, other than for those expenditures governed by subsection (f)(g) of this section, which expenditures in any
reporting category total more than twenty-five dollars to or on
behalf of any particular public official or employee, the lobbyist
shall report the name of the public official or employee to whom or
on whose behalf the expenditures were made, the total amount of the
expenditures, and the subject matter of the lobbying activity, if
any. Under this subsection, no portion of the amount of an
expenditure for a dinner, party or other function sponsored by a
lobbyist or a lobbyist's employer need be attributed to or counted
toward the reporting amount of twenty-five dollars for a particular
public official or employee who attends the function if the sponsor
has invited to the function all the members of: (1) The
Legislature; (2) either house of the Legislature; (3) a standing or
select committee of either house; or (4) a joint committee of the
two houses of the Legislature. However, the amount spent for the
function shall be added to other expenditures for the purpose of
determining the total amount of expenditures reported under
subsection (b)(c)(1) of this section.(f)(g) If, during the period covered by the report, the
lobbyist made expenditures in the reporting categories of meals and
beverages, lodging, travel, gifts and scheduled entertainment,
which reporting expenditures in any reporting category total more
than twenty-five dollars for or on behalf of a particular public
official or public employee in return for the participation of the
public official or employee in a panel or speaking engagement at
the meeting, the lobbyist shall report the name of the public official or employee to whom or on whose behalf the expenditures
were made and the total amount of the expenditures.§6B-3-7. Duties of lobbyists.A person required to register as a lobbyist under this chapter
shall also have the following obligations, the violation of which
shall constitute cause for revocation of his or her registration,
and termination of lobbying privileges and may subject such person,
and such person's employer, if such employer aids, abets, ratifies,
or confirms any such act, to other civil liabilities, as provided
by this chapter.
(1) Such persons shall obtain and preserve all accounts,
bills, receipts, books, papers and documents necessary to
substantiate the financial reports required to be made under this
article for a period of at least five years from the date of the
filing of the statement containing such items, which accounts,
bills, receipts, books, papers, and documents shall be made
available for inspection by the commission at any time: Provided,
That if a lobbyist is required under the terms of his or her
employment contract to turn any records over to his or her
employer, responsibility for the preservation of such records under
this subsection shall rest with such employer.
(2) In addition, a person required to register as a lobbyist
shall not:
(A) Engage in any activity as a lobbyist before registering as
such;
(B) Knowingly deceive or attempt to deceive any government officer or employee as to any fact pertaining to a matter which is
the subject of lobbying activity;
(C) Cause or influence the introduction of any legislation for
the purpose of thereafter being employed to secure its defeat;
(D) Exercise any undue influence, extortion, or unlawful
retaliation upon any government officer or employee by reason of
such government officer or employee's position with respect to, or
his or her vote upon, any matter which is the subject of lobbying
activity;
(E) Exercise undue influence upon any legislator or other
privately employed government officer or employee through
communications with such person's employer;
(F) Give a gift to any government officer or employee in
excess of or in violation of any limitations on gifts set forth in
subsection (c), section five, article two of this chapter, or give
any gift, whether lawful or unlawful, to a government officer or
employee without such government officer or employee's knowledge
and consent.§6B-3-7a. Compliance audits.(a) Each year, the commission shall initiate, by lottery,
random audits of registration statements and disclosure reports
required to be filed under the act.
(b) The commission may hold up to four lotteries per year.
The number of lotteries held within a given year will be a matter
within the commission's discretion.
(c) No lobbyist is subject to a random audit more than once in any twelve-month period.
(d) The purpose of conducting the audits shall be to ensure
compliance with the act.
(1) Each year, the number of audits to be conducted will be
determined through resolutions adopted at public meetings. The
number of audits conducted in a given year will depend on various
factors, including the complexity, results and time required to
complete the audits.
(2) An audit shall include registration statements and
disclosure reports, as well as other relevant information to
verify, explain, clarify, support or contravene the registration
statements and disclosure reports.
(3) An audit shall be limited in time to the previous five
calendar years, except that lobbying activities performed prior to
the effective date of this section will not be audited.
(e) The following general audit procedures will be employed by
the commission for audits conducted pursuant to this section of the
act:
(1) At least thirty days prior to the initiation of the audit,
each audit subject will be advised by letter that it was randomly
selected for audit and further advised of the time, date, place and
general scope as well as a tentative time frame for completion of
the audit. The letter will contain a request for documents deemed
necessary to conduct the audit.
(2) Prior to the initiation of the audit, a review of the
subject's reports on file with the commission for a period not to exceed five years will be conducted.
(3) The audit will be initiated by way of conference with the
audit subject, or in the case of a firm, the designated
representative thereof.
(A) The audit will include a detailed field examination of the
financial records of the audit subject relating to financial
activities.
(B) The audit may include independent verification of some or
all of the information reported.
(i) The audit may include related records from other sources,
in which case the subject of the audit shall cooperate fully and
shall execute all waivers, releases or authorizations to allow the
commission to obtain the records.
(ii) Registrants shall have an affirmative duty to cooperate
fully in any audit of themselves.
(4) The audit may include interview of lobbyists, principals,
representatives and employees thereof and other individuals
necessary to the completion of the audit.
(5) A post audit conference will be conducted with the subject
of the audit, or in the case of an entity or firm, with the
designated representative thereof.
(6) Post audit preparation of a report describes the result of
the audit.
(f) The auditor employed by or contracted with the commission
responsible for performing compliance audits will, at the
conclusion of each audit, prepare an audit report which will include findings.
(1) An audit report may include recommendations as to
recordkeeping, reporting and other related practices arising from
the audit.
(2) Upon completion, an audit report will be served upon the
principal or lobbyist that is the subject of the audit.
(A) Service of the audit is complete upon mailing.
(B) Within thirty days of service of the audit report, the
subject of the audit may file with the commission a statement
setting forth the subject's position as to the audit report.
(g) Audit reports and any related responses shall be submitted
to the executive director of the commission for review, and may
form the basis for further proceedings under the act.
(h) An audit report and findings are confidential, except that
the commission may include the relevant portion of an audit as part
of its findings of fact in a commission order which results from an
investigation arising out of an audit.§6B-3-9. Penalties.
(a) Any person who is required under the provisions of this
article to file an application, statement or report and who
willfully and knowingly makes a false statement, conceals a
material fact or otherwise commits a fraud in the application,
statement or report is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one thousand dollars, or
confined in a county or regional jail not more than one year, or
both.
(b) A person who is subject to the registration and reporting
requirements of this article and who fails or refuses to register
or who fails or refuses to file a required statement or report or
who otherwise violates the provisions of this article may be the
subject of a complaint filed with the ethics commission and may be
proceeded against in the same manner and to the same ends as a
public officer or public employee under the provisions of this
chapter.(c) A lobbyist employer which has knowledge that its lobbyist
has failed to register or that its lobbyist has failed or refused
to file required statements or reports may be the subject of a
complaint filed with the ethics commission and may be proceeded
against in the same manner and to the same ends as a public officer
or public employee under the provisions of this chapter.(c)(d) A person who willfully and knowingly files a false
report under the provisions of this article is liable in a civil
action to any government officer or employee who sustains damage as
a result of the filing or publication of the report.;
And,
On pages one through five, by striking out the title and
substituting therefor a new title, to read as follows:Eng. Com. Sub. for Senate Bill No. 1003--A Bill to amend and
reenact §6B-1-2 and §6B-1-3 of the Code of West Virginia, 1931, as
amended; to amend said Code by adding thereto a new section,
designated §6B-1-6; to amend and reenact §6B-2-1, §6B-2-2, §6B-2-4,
§6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of said Code; to amend said Code by adding thereto three new sections, designated §6B-2-2a,
§6B-2-5b and §6B-2-12; to amend and reenact §6B-3-1, §6B-3-2,
§6B-3-3a, §6B-3-4, §6B-3-7 and §6B-3-9 of said Code; and to amend
said Code by adding thereto three new sections, designated
§6B-3-3b, §6B3-3c and §6B-3-7a, all relating generally to the
ethical standards of public officers, employees and lobbyists;
providing a definition of certain terms; creating a special revenue
account; clarifying membership qualifications for the West Virginia
Ethics Commission; providing compensation and procedure for
meetings of the of the West Virginia Ethics Commission; describing
the powers, duties and authority of the Commission; providing for
procedures with respect to the filing of complaints against persons
subject to said chapter, the determination of probable cause that
a violation of this chapter has occurred and the conduct of
hearings with respect thereto; establishing the Public Servant
Conduct Review Board; providing for appointment to the Public
Servant Conduct Review Board; providing for confidentiality
requirements as to the Commission members and staff; modifying the
burden of proof for a finding of a violation; providing immunity
for complainants; referral of criminal conduct to county
prosecutor; limitations on filing complaints; clarifying the law
relating to the solicitation of donations by members of the Board
of Public Works; providing ethical standards for elected and
appointed officials as well as certain public employees; penalties;
providing for ethics training for certain public officers and
employees; providing for the contents of financial disclosure statements required of certain public officials, public employees;
providing for the appointment of special prosecutors in certain
cases; providing for penalties for violations of said chapter;
providing for the disclosure of certain information of nonprofit
organizations receiving state funds; providing definitions of
certain terms related to lobbyist; providing for registration and
reporting requirements for lobbyists; clarifying conflict of
interests related to lobbying activities; providing for a lobbyist
training course; providing for reporting requirements for
lobbyists; describing the duties of lobbyists and defining certain
acts which are violations; providing for compliance audits of
lobbyists and their employers; and establishing penalties.
No action for immediate consideration being taken by the
Senate, the message lies over on unfinished business.

Executive Communications

Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor,
consisting of executive nominations for appointees:

STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

January 27, 2005

Senate Executive Message No. 2
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nomination for your advice
and consent:
1. For Adjutant General, Allen E. Tackett, Miami, Kanawha
County, to serve at the will and pleasure of the Governor.
Notice of this appointment was previously provided to the
appropriate legislative staff at the time the appointment was made.
Sincerely,
Joe Manchin III,Governor.Which communication was received and referred to the Committee
on Confirmations and incorporated with the executive nominations
received earlier this session; all to be considered as a special
order of business following an anticipated recess.
Pending announcement of a meeting of a standing committee of
the Senate,
On motion of Senator Chafin, the Senate recessed for ten
minutes.

Night Session

Upon expiration of the recess, the Senate reconvened and
proceeded to the fourth order of business.Senator Love, from the Committee on Confirmations, submitted
the following report, which was received:
Your Committee on Confirmations has had under considerationSenate Executive Message No. 1, dated January 24, 2005,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 1 is submitted:
1.For Member, Housing Development Fund, Dan Moore,
Charleston, Kanawha County, for the term ending October 30, 2008.
2.For Member, Housing Development Fund, Mark Richard
Nesselrodt, Morgantown, Monongalia County, for the term ending
October 30, 2008.
3.For Member, Marshall University Board of Governors, H.
F. Mooney, Jr., Charleston, Kanawha County, for the term ending
June 30, 2007.
4.For Secretary, Department of Administration, Robert
Warren Ferguson, Jr., Charleston, Kanawha County, to serve at the
will and pleasure of the Governor.
5.For Commissioner, Alcohol Beverage Control
Administration, Dallas Scott Staples, Charleston, Kanawha County,
to serve at the will and pleasure of the Governor.
6.For Secretary, Department of Health and Human Resources,
The Honorable Martha Yeager Walker, Charleston, Kanawha County, to
serve at the will and pleasure of the Governor.
7.For Commissioner, Division of Highways, Paul Arthur
Mattox, Hurricane, Putnam County, to serve at the will and pleasure
of the Governor.
8.For Secretary, Department of Military Affairs and Public
Safety, James Westbrooke Spears, Elkins, Randolph County, to serve
at the will and pleasure of the Governor.
9.For Commissioner, Division of Natural Resources, Frank
Joseph Jezioro, Flemington, Taylor County, to serve at the will and pleasure of the Governor.
10.For Superintendent, West Virginia State Police, David
Lemmon, Charleston, Kanawha County, to serve at the will and
pleasure of the Governor.
11.For Secretary, Department of Education and the Arts, Kay
Huffman Goodwin, Charleston, Kanawha County, to serve at the will
and pleasure of the Governor.
12.For Secretary, Department of Environmental Protection,
Stephanie Timmermeyer, Charleston, Kanawha County, to serve at the
will and pleasure of the Governor.
13.For Member, Unemployment Compensation Board of Review,
Michael Eugene Jones, Farmington, Marion County, for the term
ending January 1, 2011.
And,Senate Executive Message No. 2, dated January 27, 2005,
requesting confirmation by the Senate of the nomination mentioned
therein. The following name from Executive Message No. 2 is
submitted:
1.For Adjutant General, Allen E. Tackett, Miami, Kanawha
County, to serve at the will and pleasure of the Governor.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.

Respectfully submitted,

Shirley Love,Chair.

__________

The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His
Excellency, the Governor, the special order thereon was called by
the President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive messages:Senate Executive Message No. 1, dated January 24, 2005 (shown
in the Senator Journal of Tuesday, January 25, 2005, pages 2 to 3).
And,Senate Executive Message No. 2, dated January 27, 2005 (shown
in the Senate Journal of today, pages 78 to 79).
Senator Love then moved that the Senate advise and consent to
all of the executive nominations referred to in the foregoing
report from the Committee on Confirmations.
The question being on the adoption of Senator Love's
aforestated motion,
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley,
Caruth, Chafin, Deem, Dempsey, Edgell, Foster, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse,
Unger, Weeks, White, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Bowman, Facemyer and Fanning--3.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared Senator Love's
aforestated motion had prevailed.

__________

Consideration of executive nominations having been concluded,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Saturday, January 29, 2005, at 11 a.m.